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101 Geo. L.J. 1337 (2012-2013)
Regulatory Review, Capture, and Agency Inaction

handle is hein.journals/glj101 and id is 1385 raw text is: Regulatory Review, Capture, and Agency Inaction MICHAEL A. LIVERMORE & RICHARD L. REVESZ* This Article highlights the role of capture in providing a normative founda- tion for regulatory review of administrative action, which, at the federal level, is conducted by the Office of Information and Regulatory Affairs (OIRA) within the White House Office of Management and Budget (OMB). It also establishes a reform agenda to help bring the practice of review in line with its anticapture justification. There are two traditional justifications for OIRA review: that centralized review facilitates the exercise of presidential authority over agen- cies, and that bureaucratic tendencies toward overzealousness require a central- ized checking response. Both of these justifications are problematic, however The normative desirability of maximizing presidential power is subject to debate, and OIRA's contribution to increasing presidential control is controver- sial. Bureaucratic incentives can lead to both overregulation and underregula- tion, raising doubts about the need for a systematic check focused solely on the former An anticapture function for OIRA provides a more promising ground for regulatory review. OIRA has four important features that, in principle, can facilitate an anticapture role: its generalist nature; its coordination function; its use of cost-benefit analysis; and its tradition of independent leadership. There are, however, elements of OIRA review that undermine its anticapture potential, most importantly the near-exclusive focus on the review of agency action. The failure of an agency to act can be just as detrimental to social well-being as overzealousness, and special interests may seek deregulation, delay, and weak regulation as often as overregulation. This Article proposes a specific mecha- nism for OIRA to engage in review of agency inaction by examining petitions for rulemakings filed with agencies. This procedure cabins OIRA's inaction review powers within a fairly limited field, making the task workable, and takes advantage of information held by parties outside the government. * Executive Director, Institute for Policy Integrity and Adjunct Professor, New York University School of Law, and Dean and Lawrence King Professor of Law, New York University School of Law, respectively. 0 2013, Michael A. Livermore and Richard L. Revesz. This Article benefited from helpful comments from participants at the 2012 Annual Meeting of the American Law and Economics Association (as well as an anonymous reviewer for that meeting) and the 2012 Annual Meeting of the Association of American Law Schools. Participants at two Tobin Project workshops on preventing regulatory capture and authors of PREVENTING REGULATORY CAPTURE: SPECIAL INTEREST INFLUENCE AND How ro Lturr IT (Daniel Carpenter & David Moss eds., forthcoming 2013), available at http:// www.tobinproject.org/books-papers/preventing-capture, also provided valuable feedback. Rachel Barkow, Michael E. Levine, Mark B. Seidenfeld, and Cass R. Sunstein also provided helpful insights. We would like to thank Akari Atoyama, Scott Blair, and Shaun Werbelow for excellent research assistance and the Filomen D'Agostino and Max Greenberg Research Fund at New York University School of Law for generous financial support. 1337

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